Read the full judgment text of CACV 000386/2005 on BabelCite. This Court of Appeal judgment was delivered on 18 January 2007 before Stock JA, Cheung JA, Chung J.
Administrative law – town planning – judicial review – Comprehensive Development Area (CDA) zoning – Urban Renewal Authority Ordinance (URAO) – Town Planning Ordinance (TPO), Cap. 131 – objections to draft Development Scheme Plan (DSP) – Staunton Street / Wing Lee Street / Aberdeen Street area (H19 project) – applicants as landowners within CDA with existing planning permission for 27-storey tower block at plot ratio 10 – TPB's decision not to amend DSP – whether financial viability of URA Development Scheme could be a relevant planning consideration – whether there was a proper evidentiary basis for the financial viability concern – effect of mixed valid and invalid considerations on the decision – appeal against dismissal of judicial review by Chu J. – that the URA's role in urban renewal is unique and that under section 10(4) URAO it must exercise due care and diligence over its finances, so that financial viability of a URA Development Scheme may properly be considered as having planning consequences (R v Westminster City Council, ex p Monahan [1990] 1 QB 87 followed) – that, however, where a decision-maker is swayed by an inadequately presented factor he must take reasonable steps to acquaint himself with the relevant information (Prest & Straker v Secretary of State for Wales [1983] RVR 10; Tameside [1977] AC 1014; Alconbury [2003] 2 AC 295) – that URA had put forward only the revenue side (33-60% loss of revenue) without addressing the cost/compensation side of acquiring the applicants' site, and the TPB failed to inquire further – that the influence of an irrelevant factor need not be the sole or dominant influence; it is enough that its influence was material or substantial (de Smith, Woolf and Jowell, para 6-086; R v Rochdale MBC, ex p Cromer Ring Mill Ltd [1982] 3 All ER 761) – that the reasons were mixed and could not be clearly disentangled (distinguishing R v Broadcasting Complaints Commission, ex p Owen [1985] QB 1153; applying R v Lewisham LBC, ex p Shell UK Ltd [1988] 1 All ER 938 and the Lovelace/Fay line) – that the court could not be satisfied the TPB would have reached the same decision on planning grounds alone – that a public authority respondent has a high duty not to retract a previously stated position at a late stage (R (Quark Fishing Ltd) v SSFCA [2002] EWCA Civ 1409) – that the TPB had not failed to balance the applicants' interests (Silver Mountain Ltd v Attorney General [1994] 1 WLR 925; Wells v Minister of Housing [1967] 1 WLR 1000; Spackman v SSE [1977] 1 All ER 257; Munjaz [2006] 2 AC 148) – that the chairperson's direction did not impose a presumption in favour of the Development Scheme and the TPB's reasons, though brief, were sufficient (Oriental Daily Publisher Ltd v Commissioner for TELA [1997-98] 1 HKCFAR 279) – that the second-actor theory in Boddington v British Transport Police [1999] 2 AC 143 was not necessary to decide – appeal allowed, decision quashed, matter remitted, costs to applicants against the Respondent, no order as to costs of the Interested Party.
Legal issues: Whether TPB took financial viability of the Development Scheme as a basis of its decision · Whether TPB could properly take financial viability into account · Whether there was a proper evidentiary basis for the financial viability concern · Whether financial viability was the only consideration relied upon by TPB · Effect of mixed valid and invalid considerations on the TPB's decision
Outcome: Appeal allowed; the TPB's decision of 19 March 2004 not to propose an amendment to the Development Scheme Plan to meet the applicants' objection is quashed; the matter is remitted to the TPB for reconsideration in accordance with law.
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